Law

of
Tort
By: Sir Mahmood Ahmed Khan

ACCA Paper F4

By; Sir Mahmood Ahmed Khan Page 1

Tort
Tort is distinguished from other legal wrongs.

It is not a breach of contract, where the obligation which is alleged to have been
breached arose under an agreement between two parties.
It is not a crime, where the object of proceedings is to punish the offender rather
than compensate the victim.
A tort is a civil wrong and the person wronged sues in a civil court for
compensation or an injunction.
In tort no previous transaction or contractual relationship need exist

Types of tort
Trespass to land
Trespass to land involves one or a combination of the following acts without lawful justification

Entering land that is owned by the claimant

Remaining on the land
Placing objects or projections onto the land
Liability for trespass is strict, which means that even if the action is accidental or no damage results from
it, the trespasser is still liable.

Nuisance
Landowners have the right to use their land as they see fit and not to have their land interfered with.
Nuisance occurs where the use of land by one occupier causes damage to a neighbouring occupier or their
land.

There are two types of nuisance, private and public.

Private nuisance

This is the 'unlawful interference with a person's use, or enjoyment of land, or some right or in connection
with it'

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Public nuisance

Public nuisances are not related to private nuisance as they are created by statute and are therefore
criminal offences. Examples include obstructing the highway, takeaway restaurants creating litter and
odours and 'raves' that attract hundreds of people late at night creating noise and disturbance to a wide
area.

Trespass to the person

Battery
Battery involves the intentional bringing of a material object into contact with another person. It is not
just restricted to violent acts, but can also include non-violent acts such as the application of 'tone rinse' to
a scalp - Nash v Sheen (1953). For liability to be created it is just the act that must be intentional - not the
injury.

Assault
Assault is the intentional act of putting another in reasonable fear or apprehension of immediate battery.
Words may not enough to create a liability unless they are accompanied by menacing or threatening
actions. For example, telling someone you will shoot them may not be classed as assault unless you are
pointing a gun at them as well.

False imprisonment
False imprisonment involves unlawfully arresting, imprisoning or preventing a person from leaving from
where they are

Defamation
The expression or publication of false or defamatory statements that is not lawfully justified are known
collectively as defamation. In other words, defamation involves the ridicule of an individual or holding
them in contempt.

Deceit, injurious falsehood and 'passing-off

Deceit
It is a wrong whereby the claimant is mislead into taking actions that are to his detriment. A typical
example of deceit is the con-artist who encourages an individual to pay him money for goods that he has
no intention of supplying.

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Injurious falsehood
It involves the defendant making false statements about the claimant that cause the claimant damage
through the actions of others. A key example in the business context is the tort of passing-off.

Passing-off
It is the use of a name, mark or description by one business that misleads a consumer to believe that their
business is that of another. This tort often occurs when expensive 'designer' products such as watches or
clothing are copied and sold as 'originals' to unsuspecting customers.

The tort of negligence

Definition
There is a distinct tort of negligence which is causing loss by a failure to take reasonable care when there
is a duty to do so. This is the most important and far reaching modern tort.

Duty of care
The basic rule
The question of whether or not a duty of care exists in any situation is generally decided by the courts on
a case by case basis, with each new case setting a precedent based on its own particular facts.

Breach of duty of care

The basic rule
Breach of duty of care is the second issue to be considered in a negligence claim. The standard of
reasonable care requires that the person concerned should do what a reasonable man would do. This will
also mean the reasonable employer, or the reasonable adviser.

The following factors should be considered when deciding if a duty of care has been breached:

Probability of injury
It is presumed that a reasonable man takes greater precautions when the risk of injury is high. Therefore
when the risk is higher the defendant must do more to meet his duty. In Glasgow Corporation v Taylor
1992 local authority was held to be negligent when children ate poisonous berries in a park. A warning
notice was not considered to be sufficient to protect children.

(b) Seriousness of the risk

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The young, old or disabled may be prone to more serious injury than a fit able-bodied person. The 'egg-
shell skull' rule means that you must take your victim as they are. Where the risk to the vulnerable is high,
the level of care required is raised.

(c) Issues of practicality and cost

It is not always reasonable to ensure all possible precautions are taken. Where the cost or disruption
caused to eliminate the danger far exceeds the risk of it occurring it is likely that defendants will be found
not to have breached their duty if they do not implement them.

(d) Common practice

Where an individual can prove their actions were in line with common practice or custom it is likely that
they would have met their duty of care. This is unless the common practice itself is found to be negligent.

(e) Social benefit

Where an action is of some benefit to society, defendants may be protected from liability even if their
actions create risk. For example, a fire engine that speeds to a major disaster provides a social benefit that
may outweigh the greater risk to the public.

(f) Professions and skill

Persons who hold themselves out to possess a particular skill should be judged on what a reasonable
person possessing the same skill would do in the situation rather than that of a reasonable man.
Professions are able to set their own standards of care for their members to meet and therefore members
should be judged against these standards rather than those laid down by the courts.

Res ipsa loquitur

In some circumstances the claimant may argue that the facts speak for themselves (res ipsa loquitur)
-want of care being the only possible explanation for what happened, negligence on the part of the
defendant must be presumed.

Res ipsa loquitur

It can be defined as: The thing speaks for itself. If an accident occurs which appears to be most likely
caused by negligence, the court may apply this maxim and infer negligence from mere proof of the facts.
The burden of proof is reversed and the defendant must prove that s/he was not negligent.

What the claimant must first show to rely on this principle:

The thing which caused the injury was under the management and control of the defendant.
The accident was such as would not occur if those in control used proper care.

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Causality and remoteness of damage
Damage or loss
This is the third element of a negligence claim. A claim for compensation for negligence will not succeed
if damage or loss is not proved.

A person will only be compensated if he has suffered actual loss, injury, damage or harm as a
consequence of another's actions. Examples of such loss may include:

Personal injury
Damage to property
Financial loss which is directly connected to personal injury, for example, loss of earnings
Pure financial loss is rarely recoverable

The 'But for’ test

To satisfy the requirement that harm must be caused by another's actions, the 'But for' test is applied. The
claimant must prove that if it was not 'but for1 the other's actions they would not have suffered damage.
Therefore claimants are unable to claim for any harm that would have happened to them anyway
irrespective of the defendant's actions.

Multiple causes
The courts often have difficulty in determining causation where there are a number of possible causes of
injury including the negligent act. The courts must decide on the facts if the negligent act was the one that
most likely caused the injury.

Novus actus intervieniens

Courts will only impart liability where there is a cause of events that are a probable result of the
defendant's actions. Defendant's will not be liable for damage when the chain of events is broken. There
are three types of intervening act that will break the chain of causation.

Act of the claimant

The actions of the claimant themselves may break the chain of causation. The rule is that where the act is
reasonable and in the ordinary course of things an act by the claimant will not break the chain.

Act of a third party

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Where a third party intervenes in the course of events the defendant will normally only be liable for
damage until the intervention.

Natural events

The chain of causality is not automatically broken due to an intervening natural event. In situations where
the breach puts the claimant at risk of additional damage caused by a natural event the chain will not be
broken. However, where the natural event is unforeseeable, the chain will be broken.

Remoteness of damage

Even where causation is proved, a negligence claim can still fail if the damage caused is 'too remote'. The
test of reasonable foresight developed out of The Wagon Mound (1961). Liability is limited to damage
that a reasonable man could have foreseen. This does not mean the exact event must be foreseeable in
detail, just that the eventual outcome is foreseeable.

Defences to negligence
Contributory negligence
A court may reduce the amount of damages paid to the claimant if the defendant establishes that they
contributed to their own injury or loss, this is known as contributory negligence.

Volenti non fit injuria

Where a defendant's actions carry the risk of a tort being committed they will have a defence if it can be
proved that the claimant consented to the risk. Volenti non fit injuria literally means the voluntary
acceptance of the risk of injury.

This defence is available to the defendant where both parties have expressly consented to the risk (such as
waiver forms signed by those taking part in dangerous sports), or it may be implied by the conduct of the
claimant.

An awareness of the risk is not sufficient to establish consent. For this defence to be successful the
defendant must prove that the claimant was fully informed of the risks and that they consented to them

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